Affirmative action and reverse discrimination

By Atty. Eduardo T. Reyes III

The series of pictures  on the news of Ms. Hidilyn Diaz lifting a combined total of 224kg on her way to a gold medal finish in the Tokyo Olympics – the first ever for the Philippines- had brought the much-needed euphoria to the downtrodden Filipino soul.    Standing at 4’11 (feet), the 30-year old Diaz had hoisted the pride of 109 million Filipinos. In a sense, it can be said that at this point she is arguably the strongest female athlete in the world – at least in her discipline.

In other (but related) news, transgender athletes had joined the Olympics some twenty (20) years ago. And not only in the Olympics but also in other minor competitions, transgender athletes had been competing against female athletes.

In the collegiate games in the US such as in track-and-field for instance, female athletes who had reportedly been consistent at winning had suddenly experienced a string of losses to transgender women competitors. Postulating that allowing transgender women to compete against biologically female athletes is unfair, Chelsea Mitchell, an award-winning college athlete, had filed suit before a US court to “correct” this inequity.

By contrast, Veronica Ivy, an advocate of trans women’s “human right” to participate in the female category of every sport, dismisses the idea of inequality between biologically female athletes and trans athletes. She claims that there is no data to support the assertion that trans athletes have an undue advantage over females.

But this column is not about which opinion or claim is correct. Instead, this is about the possible legal repercussions of the case which Chelsea Mitchell had put forward predicated on a claim of unfairness. Cases of this nature would fall under what are known as “affirmative action” and “reverse discrimination”.

History is replete with injustices, prejudices and abuses against certain peoples on account of their race, sex or national origin and this could not be truer than in the United States. The US government had been trying to address this issue since the Civil War until a proactive movement had crystallized into what is now known as Affirmative Action.  In 1981, the U.S. Commission on Civil Rights had described “affirmative action” as having three features. Melvin I. Urofsky, a professor of History and Chair of the Department of History at Virginia Commonwealth University, articulated the three components in this manner:

“In 1981, the U.S. Commission on Civil Rights defined it as having three components. First, it is remedial: affirmative action denotes efforts that take race, sex and national origin into account for the purpose of remedying past and present discrimination and its effects. Second, affirmative action seeks ultimately to bring about equal opportunity: it assumes that race, sex or national origin {must be considered} in order to eliminate considerations of race, sex or national origin”, that because of the duration of intensity, scope and intransigence of the discrimination women and minority groups experience affirmative action plans are needed to assure equal employment opportunity. Third, affirmative action specifies what groups are to be considered part of the “protected class” covered by its policies”. (p. xii, The Affirmative Action Puzzle, A Long History From Reconstruction to Today, Melvin I. Urofsky, Pantheon Books, 2020).

            Indeed, affirmative action refers to the act of giving special privileges to persons who had been considered as “minorities” by reason of their race, sex or nation of origin. It is like paying them for a debt that society owes them for past injustices. The suffragette movement in the 1920’s is an example of an affirmative action. Women who were not allowed to vote in olden times had fought hard to achieve their goal of being able to participate during elections.  It may also be in the form of laws or policies requiring schools or workplaces to allot a certain percentage of their student or worker population to accommodate “minorities” in the interest of “inclusivity” and “diversity”.

Affirmative action devolves on all three branches in a democratic government. Congress in passing laws take into account the interest of the minorities in order to put them on equal footing with the majority. Executive power may be slanted by prioritizing the minorities when laws are implemented. And the Judiciary can interpret the laws to suit the needs of “those who have less in life” so that they may be compensated because they “will [now] have more in law” .

Yet again, what is tricky is that while bending over backwards to give special consideration to “minorities” and reserving “slots” for them, the possible consequence is that those who are deserving but are part of the far bigger chunk which is the majority, could be bumped off. And when this happens, it results in what is called “reverse discrimination”.

This columnist is also a jock (Legal Harbinger played lawn tennis in the National Games  in college) and thus he perfectly understands how it is to play competitively. The aim of every athlete is to win. It may be consoling to hear that “it’s not whether you win or lose, it’s how you played the game”; but to a true-blooded competitor who had trained all his/ her life for the competition, there should be no other end-goal than a victory.

Inevitably, the nagging issue is whether the competition will still be fair when biologically female athletes are pitted against transgender athletes. Curiously, will Ms. Hidilyn Diaz still triumph if ever she will be up against a transgender athlete? This issue similarly resonates in the on-going debate about “female-only restrooms”.

This brewing legal issue has a magnitude of unimaginable proportions.

So which is it: affirmative action or reverse discrimination?

Let the courts decide.

(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a book author. His website is etriiilaw.com).